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JBS Australia Pty Limited v The Workers' Compensation Regulator[2019] QIRC 120

JBS Australia Pty Limited v The Workers' Compensation Regulator[2019] QIRC 120

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: 

JBS Australia Pty Limited v the Workers' Compensation Regulator [2019] QIRC 120

PARTIES: 

JBS Australia Pty Limited

(Appellant)

v

the Workers' Compensation Regulator

(Respondent)

CASE NO:

WC/2017/234

PROCEEDING:

Appeal against a decision of the Workers' Compensation Regulator

DELIVERED ON:

21 August 2019

HEARING DATES:

27 February 2019

HEARD AT:

Brisbane

MEMBER:

Bloomfield DP

ORDERS:

  1. The appeal is upheld in part.
  2. The decision of the Regulator dated 15 November 2017 is set aside.
  3. The Worker is entitled to workers' compensation payments for the period of her total incapacity for work, calculated in accordance with the provisions of s 150 of the Act.
  4. The Worker is entitled to workers' compensation payments for the periods of her partial incapacity for work, calculated in accordance with the provisions of s 162 and s 163 of the Act.
  5. The matter is returned to the Regulator, with the direction that the workers' compensation entitlements of the Worker are to be calculated in accordance with Orders (3) and (4) above.
  6. The matter of costs is reserved, to be dealt with on application, if either party is minded to apply.

CATCHWORDS:

WORKERS' COMPENSATION – APPEAL AGAINST DECISION – WHETHER EMPLOYER ENTITLED TO DECREASE PAYMENT OF WEEKLY COMPENSATION ENTITLEMENT DURING A SEASONAL CLOSURE – WHETHER REGULATOR ENTITLED TO DIRECT A HIGHER LEVEL OF WEEKLY ENTITLEMENT IF SELF INSURER DOES NOT PROVIDE REHABILITATION SERVICES – where principles of statutory interpretation – where no ambiguity – where natural and grammatical meaning of provisions applied – where neither seasonal shutdown nor termination of a worker's employment affects obligations of an employer as a–self insurer – appeal upheld in part – matter returned to the Regulator with directions.

LEGISLATION:

Workers' Compensation and Rehabilitation Act 2003, s 4, s 5, s 107B, s 108, s 144A, s 145, s 147, s 150, s 162, s 163, s 168, s 173, s 220

WorkCover Queensland Act 1996, s 1171

Acts Interpretation Act 1954 (Qld), s 14A

CASES:

Kelly v WorkCover Queensland [2002] 1 Qd R 496

State of Queensland (Queensland Ambulance Service) v QComp [2006] QIC 25

Anderton v Q-Comp 183 QGIG 671.

The Metropolitan Gas Co v The Federated Gas Employees' Industrial Union [1924] 35 CLR 449

Attorney-General v Prince Augustus of Hanover [1957] AC 436

Project Blue Sky  v Australian Broadcasting Authority (1998) 194 CLR 355

Grey v Pearson (1857) 6 HLC 61

Q-COMP v Baulch [2004] QIC 11, 175 QGIG 978

Cloncurry Shire Council v Workers' Compensation Regulatory Authority & Anor [2006] QSC 326

Brett Holt Plumbing Pty Ltd v Q-COMP (2005) 178 QGIG 255

Toll North Pty Ltd v Simon Blackwood (Workers' Compensation Regulator) & Lamb [2014] QIRC 065

Mandep Sarkaria v Workers' Compensation Regulator [2019] ICQ 001

APPEARANCES:

Dr G.J. Cross, Counsel instructed by Mr C. Murphy of HBA Legal, for the Appellant.

Mr P.B. O'Neill, Counsel directly instructed by Ms J. Edwards of the Workers' Compensation Regulator, for the Respondent.

Decision

  1. [1]
    This matter concerns an Appeal by JBS Australia Pty Limited (JBS) against the decision of the review unit of the Workers' Compensation Regulator (the Regulator), dated 10 November 2017, to set aside the original decision of JBS, a self-insurer, to decrease the weekly compensation entitlement of Ms Kay Bire (the Worker) to $0 during a seasonal closure between 16 December 2016 and 22 March 2017, in which period she was either totally or partially incapacitated for work.
  1. [2]
    The Appellant prepared a factual Background as follows:

The Background facts

  1. The Worker was born on 5 August 1962.
  2. By application for compensation dated 29 June 2016 the Worker sought compensation in respect of an injury suffered over a period of time to 27 June 2016.
  3. The Worker's Application for Compensation was subsequently accepted.
  4. The nature of the injury that was the subject of the application for compensation dated 29 June 2016 was a right shoulder burning pain due to conditions arising from repeated use of the shoulder.
  5. The Worker was a "seasonal worker" employed on a "daily hire basis" and it was the site practice of JBS to formally terminate the engagement of daily hire workers at the end of the annual season.  The amount payable to daily hire employees following seasonal shut down is $NIL.
  6. By Notice to all Workers dated 13 December 2016, workers were advised of the dates of the last kill, being 15 December 2016, and the last bone on 16 December 2016, and that notices relating to reopening would be advertised in the Townsville Bulletin and on local radio prior to the start of the 2017 season, with that date dependent on weather and cattle availability.
  7. In a letter to the Worker dated 16 December 2016, this information was reiterated and a date for final payment of compensation including accrued annual leave and personal carer's leave was advised.  The letter confirmed the Worker's employment had been terminated by reason of the seasonal plant shutdown for 2016.
  8. The JBS meat works closed on 16 December 2016 and did not reopen again until 22 March 2017.
  9. For the period 16 December 2016 to 22 January 2017 and 6 March to 21 March 2017 the Worker was certified as partially incapacitated for work.
  10. For the period 23 January 2017 to 5 March 2017 the Worker was certified as totally incapacitated for work.
  11. By letter from JBS to the Worker dated 26 June 2017 JBS confirmed that it had reduced the Worker's rate of pay to nil as at 16 December 2016 for the seasonal closure, in accordance with sections 168, 150, 107B and 147 of the Workers' Compensation and Rehabilitation Act 2003 (the Act).
  12. The Worker had not submitted any evidence to support that she would have, but for an injury, gained employment from any other employer or endeavor.
  13. The Worker had not secured other employment during the shutdown period for the previous four to five years before the date of the injury being 27 June 2016.
  14. The Worker did not receive weekly payments of compensation for the period of closure of JBS from 6 December 2016 until the Regulator's Review Decision.
  15. The Regulator by Reasons for decision dated 15 November 2017 set aside the decision of JBS to decrease the Worker's rate of weekly compensation to $0 from 16 December 2016 to 21 March 2017.  The Regulator substituted a new decision that the worker had an entitlement to compensation in accordance with s 163* of the Act for the periods 16 December 2016 to 22 January 2017 and 6 March to 21 March 2017 (the period of partial incapacity).
  16. By the Reasons for decision dated 15 November 2017, the Regulator also set aside the decision of JBS to calculate the Worker's rate of weekly compensation to $0 from 23 January 2017 to 5 March 2017 and substituted a new decision that the Worker had an entitlement to compensation in accordance with s 150 of the Act (the period of total incapacity).
  17. On 13 December 2017 JBS lodged the current Notice of Appeal with the Queensland Industrial Relations Commission.

(*Note: although purporting to do so, the decision of the Regulator, recorded at paragraphs [33] and [75] below, did not actually apply s 163)

The Contentions

  1. [3]
    JBS contends that:
  • the Worker was not entitled to partial weekly compensation benefits for the periods of 16 December 2016 to 22 January 2017 and 6 March to 21 March 2017, respectively; and
  • the Worker was not entitled to full weekly compensation benefits for the period 23 January to 5 March 2017.
  1. [4]
    The Regulator contends that:
  • the Worker was entitled to partial weekly compensation benefits for the period of 16 December 2016 to 22 January 2017 and 6 March to 21 March 2017; and
  • the Worker was entitled to full weekly compensation benefits for the period 23 January to 5 March 2017;

The Orders sought

  1. [5]
    JBS seeks an Order that the review decision of 15 November 2017 be set aside and the decision of the self-insurer dated 26 June 2017 be reinstated, that is: that the Worker's rate of pay during the seasonal closure ought to have been $0. 
  1. [6]
    In opposing this, the Regulator seeks an Order that the Appeal be dismissed.

The Legislation

  1. [7]
    The following sections of the Workers' Compensation and Rehabilitation Act 2003 (the Act) are relevant provisions for the purposes of this Appeal:

4. Objects of Act

  1. (1)
    This part states the main objects of this Act.
  1. (2)
    The objects are an aid to the interpretation of this Act.

5 Workers' compensation scheme

  1. (1)
    This Act establishes a workers’ compensation scheme for Queensland -
  1. (a)
    providing benefits for workers who sustain injury in their employment, for dependants if a worker’s injury results in the worker’s death, for persons other than workers, and for other benefits; and
  2. (b)
    encouraging improved health and safety performance by employers.
  1. (2)
    The main provisions of the scheme provide the following for injuries sustained by workers in their employment -
  1. (a)
    compensation;

. . .

  1. (c)
    employers' liability for compensation;
  1. (d)
    employers’ obligation to be covered against liability for compensation and damages either under a WorkCover insurance policy or under a licence as a self-insurer;
  1. (e)
    management of compensation claims by insurers;
  1. (f)
    injury management, emphasising rehabilitation of workers particularly for return to work;

. . .

  1. (4)
    It is intended that the scheme should -
  1. (a)
    maintain a balance between -
  1. (i)
    providing fair and appropriate benefits for injured workers or dependants and persons other than workers; and
  1. (ii)
    ensuring reasonable cost levels for employers; and
  1. (b)
    ensure that injured workers or dependants are treated fairly by insurers; and
  1. (c)
    provide for the protection of employers' interests in relation to claims for damages for workers' injuries; and
  1. (d)
    provide for employers and injured workers to participate in effective return to work programs; and

. . .

107B Meaning of amount payable under an industrial instrument

. . .

  1. (3)
    If a worker is employed in an industry that is seasonal in nature, the amount payable to the worker must reflect the relevant season under the industrial instrument.

. . .

108 Compensation entitlement

  1. (1)
    Compensation is payable under this Act for an injury sustained by a worker.

. . .

145 Application and object of pt 9

  1. (1)
    This part applies if a worker is totally or partially incapacitated because of injury for which compensation is payable.
  1. (2)
    The object of this part is to provide for weekly payments to the worker during the period of incapacity.

. . .

147 Worker can not receive more than if injury had not been sustained

  1. (1)
    A worker must not receive an amount under this part that is more than the worker would have received from the worker's employment if the worker were at work and the injury had not been sustained.
  2. (2)
    Subsection (1) has effect despite any other provisions of this part.

. . .

150 Total incapacity - workers whose employment is governed by an industrial instrument

  1. (1)
    The compensation payable to a totally incapacitated worker whose employment is governed by an industrial instrument is, for each week -
  1. (a)
    for the first 26 weeks of the incapacity, the greater of the following -
  1. (i)
    85% of the worker's NWE;
  2. (ii)
    the amount payable under the worker's industrial instrument; and
  1. (b)
    from the end of the first 26 weeks of the incapacity until the end of the first 2 years of the incapacity, the greater of the following -
  1. (i)
    75% of the worker's NWE;
  2. (ii)
    70% of QOTE; and

. . .

162 Definitions for sdiv 1

In this subdivision -

LE means the worker's or person's loss of earnings, expressed as a weekly rate, because of the injury.

loss of earnings means the difference between -

  1. (a)
    the amount of the worker’s or person’s normal weekly earnings at the time of injury; and
  1. (b)
    the amount -
  1. (i)
    of the worker’s or person’s weekly earnings from employment during the period of partial incapacity; or
  1. (ii)
    if the worker or person is not in employment during the period of partial incapacity -that could be reasonably expected to be derived by the worker or person during the period, having regard to the worker’s or person’s incapacity and the availability of employment.

MC means the maximum compensation expressed as a weekly rate, that would have been payable under this part had total incapacity of the worker or person resulted from the injury.

NWE see section 106.

PC means the compensation expressed as a weekly rate, payable for the injury on account of the partial incapacity.

163 Partial incapacity

  1. (1)
    Compensation payable to a partially incapacitated worker or person is a weekly payment under this section.
  1. (2)
    The weekly payment is an amount calculated under the following formula -

JBS Australia Pty Limited v The Workers' Compensation Regulator [2019] QIRC 120

  1. (3)
    However, the amount must not be more than MC.

. . .

220 Insurer's responsibility for worker's rehabilitation

  1. (1)
    An insurer must take the steps it considers practicable to secure the rehabilitation and early return to suitable duties of workers who have an entitlement to compensation.
  2. (2)
    Without limiting subsection (1), an insurer must refer a worker who has lodged a notice of claim to an accredited return to work program of the insurer, unless the insurer is satisfied that, as a result of the injury, the worker will not be able to participate in the program.
  3. (3)
    An insurer must take the steps it considers practicable to coordinate the development and maintenance of a rehabilitation and return to work plan in consultation with the injured worker, the worker's employer and treating registered persons.
  4. (4)
    In this section -

Accredited return to work program, of an insurer, means a return to work program managed by the insurer that is accredited by the Regulator.

Examples of return to work programs -

Vocational assessments, reskilling or retraining, job placement, host employment.

The Appellant's submissions

Seasonal worker

  1. [8]
    The Appellant submitted that:
  • at the time of the injury the Worker was a "seasonal worker" employed on a "daily hire basis" under the terms of the JBS Australia Pty Limited Townsville Enterprise Agreement 2013 (the Agreement); 
  • if the Worker was not injured, she would not have been employed by the Appellant in the shutdown period between 16 December 2016 and 22 March 2017; 
  • the Worker had not submitted any evidence to support the fact that but for the injury she would have gained employment from any other employer during the shutdown period; 
  • the Worker had not secured other employment during the shutdown periods for the previous four to five years prior to the date of the injury on 27 June 2016: and
  • all employees of JBS, including the Worker, were entitled in the period of their employment to a seasonal allowance (see Clause 27 of the Agreement), which compensates them for seasonal retrenchments*, and a 10% daily hire loading (see Clause 4.18 of the Agreement). (*Note: I have taken this to be a submission.  The Agreement was not tabled to confirm the point)

The Worker's entitlements

  1. [9]
    The workers' compensation entitlements of the Worker are contained in ss 107B, 108(1), 145, 147, 150 and 168 of the Act.  Section 147 of the Act was originally included in the same terms in s 171 of the WorkCover Queensland Act 1996The WorkCover Queensland Bill 1996 Explanatory Notes[1] referred to the introduction of the provision as follows:

Worker can not receive more than if injury had not been sustained

Clause 171 specifies that a worker must not receive weekly payments under this part that are more than the worker would have received from their employment with the employer if the worker were at work and the injury had not happened.  This is to remove the incentive for workers to remain on compensation.   (Appellant's highlighting)

This previously occurred in some seasonal industries and where a worker's weekly compensation was based on average weekly earnings that included excessive abnormal overtime.  Seasonal and normal weekly earnings provisions have been incorporated under Part 1 of this Chapter (i.e. 3) to specifically deal with these situations.  This clause supplements those provisions and allows for any other similar occurrences which may arise.

The Primary Rule: Literal Construction[2]

  1. [10]
    The Appellant submitted that the first, and most elementary, rule of statutory construction is that it is to be assumed that the words and phrases of technical legislation are used in their technical meaning if they have acquired one, and otherwise in their ordinary meaning. The second rule is that words and sentences are to be construed in the ordinary and natural meaning of the words and sentences.  The safer and more correct course of dealing with a question of construction is to take the words themselves and arrive, if possible, at their meaning without, in the first instance, reference to cases.
  1. [11]
    The rules of construction are designed to intend the Legislature to have meant what it actually expressed.  The object of all interpretation is to discover the intention of Parliament, and the intention of Parliament must be deduced from the language used.  The desirability or the undesirability of one conclusion as compared with another cannot furnish a guide in reaching a decision.  Where, by the use of clear and unequivocal language capable of only one meaning, anything enacted by the Legislature must be enforced however harsh or absurd or contrary to common sense the result may be.
  1. [12]
    The provisions of the Act, including s 147, appear to have the stated intention of ensuring that the entitlements for an injured worker are not greater than the worker would have received from employment if they were at work and the injury had not been sustained.  The true literal meaning of s 147 is not in unintended consequence of the Act.  On a fair reading, the Act was intended to restrict the entitlements for injured workers so that they do not receive entitlements greater than they would have received if they remained uninjured.
  1. [13]
    Section 147 and s 150 are both contained in Chapter 3, Part 9 of the Act.  Section 147(2) appears to have the effect that s 147(1) will apply to override the effect of s 150, which means that s 147 operates to provide a "cap" on weekly compensation entitlements which would otherwise apply if s 150 was the sole provision regulating entitlements.
  1. [14]
    The reference in the Explanatory Memorandum to the provisions in Part 1 of Chapter 3 appears to be a reference to s 132(3) (now 107B(3)) which provision qualifies the definition of "amount payable under an industrial instrument".  The provision provides as follows:
  1. (3)
    If a worker is employed in an industry that is seasonal in nature, the amount payable must reflect the relevant season under the industrial instrument.
  1. [15]
    Taking each of these provisions and the Explanatory Notes together, it appears reasonably clear that the literal intention of s 147 is that, in cases of seasonal industries, such as the meat processing industry, workers' compensation weekly entitlements are to be reduced below the level otherwise prescribed by s 150, to a level which equates to no more than the weekly wages which the employee would have been receiving if the employee had remained at work with their existing employer and had not suffered the injury.
  1. [16]
    Where a plant is working a reduced number of hours per week, or the plant has totally closed, s 147 has the effect that the weekly payment of compensation must reflect the weekly wages which such worker could have expected to receive had they remained performing their usual employment duties with the employer.  Considered in this way, there does not seem to be any reason why the Appellant as a self-insurer would not be entitled to cease the weekly payments of compensation to the Worker to $0 during the period when the site is closed.  This would appear to conform with the literal words of the section and with the statements made in the Explanatory Notes as to the purpose and intent of the section, namely: that an employee who is in receipt of weekly compensation must not receive a higher weekly rate of pay than their work colleagues who have not been injured.

The Act is not Remedial or Beneficial Legislation

  1. [17]
    The Appellant noted that in Kelly v WorkCover Queensland (Kelly)[3], Atkinson J decided that the WorkCover Act was not remedial or beneficial in its effect.
  1. [18]
    Section 4 of the Act indicates that the objects of the Act, which are set out in Part 2 of Chapter 1, are an aid to the interpretation of the Act. Most of those objects are set out in s 5.  Section 5(1)(a) provides that the Act establishes a workers' compensation scheme which is intended to provide benefits for workers who sustain injury in their employment.  Section 5(4) provides that it is intended that the scheme should ensure that injured workers or dependents are treated fairly by WorkCover and self-insurers and that the scheme maintains a balance between providing fair and appropriate benefits for injured workers and ensuring reasonable premium levels for employers.
  1. [19]
    It appears to be a logical and natural extension of the meaning and effect of s 147 that an employee who has lost the capacity to earn income, whilst engaged by the Appellant in a meat processing plant, will lose an entitlement to weekly compensation at the same time that other workers at that plant lose their entitlement to weekly income by reason of a seasonal closure.

Previous consideration of s 147

  1. [20]
    The Appellant said s 147 was considered by Hall P in State of Queensland (Queensland Ambulance Service) v Q-Comp (QAS)[4] in circumstances which were not similar to the present situation.  In that matter, the Appellant argued that an ambulance officer who was arrested by the police and charged with a number of drug and dishonesty offences, and later suspended without pay, was disentitled to workers' compensation in respect of an application for compensation for a major depressive order made after his suspension.
  1. [21]
    In the appeal proceedings, the Appellant contended that: if the worker, who is still employed and in that sense was still 'at work' had actually presented for work, the worker would have been turned away and would not have been paid.  (Appellant's emphasis)
  1. [22]
    In his decision, Hall P noted the decision of Atkinson J in Kelly and went on to express the view that s 147 was in the "nature of a limitation on beneficence", saying:

It seems to me that it should be treated as part of a legislative attempt to achieve a careful and practical balance between competing interests and not moulded by a Court to better achieve a remedial goal.

  1. [23]
    Hall P also drew attention to the fact that the Act expressly suspended the payment of compensation where a worker was serving a term of imprisonment and noted there was no comparable provision about suspension.  Nonetheless, he went on to indicate that the task of the Magistrate was to construe the legislation, not to remedy (presumed) legislative defects.
  1. [24]
    The Appellant submitted that, in the case, there was no contention that work for its general able-bodied employees was reduced to nil by reason of seasonal or other factors, as is the case here.  There was no prospect that other employees would not have been "at work" as they had not been terminated.  There is a distinction between an employee suspended for disciplinary reasons (as in QAS) and a situation where an employee has been seasonally terminated.  Seasonal workers are addressed specifically under the Act by s 107B(3), which provides:

If a worker is employed in an industry that is seasonal in nature, the amount payable to the worker must reflect the relevant season under the industrial instrument.

  1. [25]
    There is a further distinction to be drawn between QAS and the present circumstances.  The former relates to an employee who was still substantially employed, although suspended, whereas the present circumstances relate to an employee who had been (seasonally) terminated.  In the former case there is an ongoing entitlement to employment whereas in the latter there is only a possibility of re-engagement in the new season.
  1. [26]
    In the absence of any evidence to support that but for her injury, the Worker would have gained income from other employment or endeavour, her weekly entitlement to compensation would not be greater than $0.  Given the particular circumstances of the Worker's case and those of the industry generally, there would not be any undue unfairness in the application of s 147 of the Act in a literal manner.

If the literal approach is accepted

  1. [27]
    The Appellant noted that if its argument was accepted, and s 147 interpreted literally, then the workers' compensation entitlements of the Worker were correctly assessed as $0 for the period of total incapacity as well as for the period of partial incapacity.

If the literal approach is not accepted

  1. [28]
    The Appellant said that if s 147 was interpreted as submitted by the Regulator, then payments for total incapacity would need to be made but payments for partial incapacity would be affected by the operation of ss 162 and 163 of the Act. In this regard, the issue for determination is whether in the period of partial incapacity the Worker suffered loss of earnings, as defined in ss 162 and 163, because of her injury.
  1. [29]
    The Worker was certified as partially incapacitated for work in the periods 16 December 2016 to 22 January 2017 and 6 March 2017 to 21 March 2017, respectively.  As such, s 162 of the Act would require any "loss of earnings" to be calculated using an amount that could reasonably be expected to be derived by the Worker having regard to her incapacity and the availability of employment.
  1. [30]
    In this respect, the Appellant argued that given the Worker's employment history in each of the past 4 or 5 annual shutdowns, and lack of evidence that she made any effort to find employment in the period of her partial incapacity, it could not be said she could be reasonably expected to have derived any income in the relevant periods of partial incapacity.  Relevantly, the Worker's reasons for not seeking alternative employment did not relate to the availability of employment or to incapacity but, rather, that in shutdown periods she does not seek to work.
  1. [31]
    It was not relevant that other employees of the Appellant, who were not totally or partially incapacitated, could look for alternative employment during the period of the seasonal shutdown.  That is not the test. In terms of s 162, the Worker lost nothing during the period of the seasonal shutdown, notwithstanding that she was partially incapacitated for part of that time, because she had no intention of working during that period.
  1. [32]
    In Anderton v Q-Comp[5] Asbury C concluded that the worker had not established he could not reasonably have derived an income during the relevant period having regard to his incapacity and the availability of employment.  She commented that there was no evidence about the availability of work nor was there any evidence the worker could have continued employment in the relevant period.  In the absence of evidence before her to establish that Mr Anderton had suffered loss of earnings, the Commissioner dismissed his appeal. In the Appellant's submission, Mr Anderton was in a better position to succeed in his Appeal than was the Worker in this case.

The operation of s 220

  1. [33]
    Although the point is not clearly described in the Background facts (see point 15 in paragraph [2] above), the Regulator's review unit - when setting aside the Appellant's original decision of 26 June 2017 - held that, in circumstances where the Appellant had no availability for employment, the responsibility for alternative rehabilitation options, under s 220 of the Act, fell to it as a self-insurer.  As such, in circumstances where the Worker had capacity to work six hours per day, with restrictions, and the Appellant, as a self-insurer, did not make alternative rehabilitation arrangements available - in the form of suitable duties - to secure the rehabilitation and return to work of the Worker, the Appellant (as self-insurer) had an obligation pursuant to ss 162 and 163 of the Act to compensate the Worker at the maximum compensation rate for the periods of her partial incapacity.
  1. [34]
    In challenging this aspect of the decision being appealed, the Appellant noted that s 220 was located in Chapter 4 - Injury Management, where the object of that Chapter is stated, in s 208, to be:
  1. (1)
    This chapter applies if a worker sustains an injury for which compensation under chapter 3 is payable.
  2. (2)
    The object of this chapter is to provide for appropriate medical treatment, hospitalisation and rehabilitation of the worker.
  1. [35]
    The Appellant also noted that, on the other hand, ss 147, 150, 162 and 163 all fell within Chapter 3 - Compensation.
  1. [36]
    In the Appellant's submission, the review unit's decision regarding the operation and effect of s 220 of the Act is flawed.  It said a finding that a self- insurer which does not undertake rehabilitation or find alternative work for an injured worker has to pay the worker weekly compensation at the maximum rate (i.e. MC, without regard to the formula in s 163) is not supported by the legislation and infers a link between Chapter 4 and Chapter 3 that does not exist.
  1. [37]
    The relevant provision, in relation to the Worker's entitlements, is s 162 which requires consideration of the amount "that could be reasonably expected to be derived by the worker…".  This is in circumstances where:
  • the Worker has a long history of not seeking employment in shutdown periods;
  • there is no evidence that the Worker would have sought employment in the relevant shutdown period;
  • there is no evidence the Worker would have attended suitable duties with another employer;
  • the Worker had already been compensated for not working in the shutdown period by reason of the "daily hire" loading in Clause 4.18 of the Agreement and by the "seasonal allowance" in Clause 27 of the Agreement; and
  • there is no reason to expect the Worker would have behaved any differently in the shutdown period commencing in December 2016 to the behaviour she had shown in the previous 4 to 5 shutdowns.

The Appellant's conclusion

  1. [38]
    In addition to summarising its submissions (above), the Appellant posed the following question for the Commission's consideration:

In circumstances where the worker would not have worked in the shutdown period, why should she receive compensation which puts her in a more advantageous position than other workers who were not injured?

The Regulator's submissions

Additional contentions

  1. [39]
    In addition to the two contentions advanced in paragraph [4] above, the Regulator advanced an additional six contentions, as follows:
  • the Appellant has misconstrued and misapplied s 147 of the Act as it applies to the Worker's continuing claim;
  • where an injured worker is lawfully terminated, compensation entitlements and obligations to provide rehabilitation continue under the Act and compensation entitlements do not automatically end;
  • the proper interpretation and application of s 147 is to be ascertained by looking at what the worker would have received had the worker been at work and uninjured in the employment in which the worker was engaged at the time at which the injury was sustained;
  • the words "at work" indicate that a worker's entitlements are to be measured not just by reference to what the worker would have received had the injury not occurred, but what the worker would have received if the injury had not occurred and the worker was at work (my emphasis, based upon the Regulator's submissions);
  • in respect of the periods in which the Worker was certified as having partial incapacity for work, loss of earnings is to be calculated by using an amount that could reasonably be expected to be derived by the Worker having regard to her incapacity and the availability of employment: s 162; and
  • the Worker had an ongoing entitlement to compensation during the periods of her partial and total incapacity despite being terminated from her employment on 16 December 2016.

The interpretation of s 147 of the Act

  1. [40]
    The Regulator submitted that the starting point for any exercise of statutory interpretation is that the Act must be read as a whole, or alternatively that words must be read in their context:  see for example The Metropolitan Gas Co v The Federated Gas Employees' Industrial Union[6]; Attorney-General v Prince Augustus of Hanover[7] and Project Blue Sky v Australian Broadcasting Authority (Project Blue Sky)[8].
  1. [41]
    In Project Blue Sky, a majority of the High Court (McHugh, Gummow and Kirby JJ) noted, at [69]:

The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.   The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole.'  In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.'  Thus, the process of construction must always begin by examining the context of the provision that is being construed. (citations omitted)

Later, in the same judgement, their Honours stated, at [78]:

… the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning. (citation omitted)

  1. [42]
    The above appears to be consistent with the "Golden Rule" of statutory interpretation which states:

The grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid the absurdity and inconsistency, but no farther : see Lord Wensleydale in Grey v Pearson[9].

  1. [43]
    In interpreting provisions of the Act, the Commission should have regard to the Act's purpose as the basis for correct interpretations of provisions within it, in accordance with the High Court's decision in Project Blue Sky.  This is consistent with the approach mandated by s 14A of the Acts Interpretation Act 1954 (Qld), which records that in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is preferred to any other interpretation.

The Act is beneficial legislation

  1. [44]
    The Regulator submitted that it was relevant for the exercise of interpretation to be undertaken by the Commission to note that the Act's purpose is beneficial, in favour of injured workers, as stated in s 5(1)(a).  The beneficial purpose had been recognised by the Supreme Court of Queensland and the Industrial Court of Queensland as being relevant to proper interpretation of the Act.[10]
  1. [45]
    The beneficial nature of the Act has also recently been confirmed by Martin P in Mandep Sarkaria v Workers' Compensation Regulator[11].  This, and the other principles referred to above, should guide the Commission in the present appeal.

The approach taken by the self-insurer is flawed

  1. [46]
    The Regulator submitted that the approach taken by the Appellant, as a self-insurer, was flawed in a number of respects.
  1. [47]
    Firstly, the relevance of s 107B of the Act was not clear. Although the section, at s 107B(3), contained a provision that the amount payable under an industrial instrument has to reflect the relevant season for a worker, this did not have the effect of reducing the amount of compensation payable to the Worker to $0.  It simply means that when applying the provisions of s 150(1)(a), the amount determined in s 150(1)(a)(i) - i.e. 85% of a worker's normal weekly earnings (NWE) - will inevitably be greater than the amount identified in s 150(1)(a)(ii) - i.e. the amount payable under the worker's industrial instrument.  As such, the consequence of applying s 107B in such a fashion would be that the applicable weekly rate of compensation would be 85% of the worker's normal weekly earnings.
  1. [48]
    Secondly, the argument that the Worker may be receiving more than her co-workers were receiving, because they had also been terminated at the time of the seasonal closure, was a red-herring.  What the Worker's co-workers may or may not have been receiving has no relevance to the interpretation of s 147 of the Act.  In particular, the co-workers are not persons to whom the self-insurer and the employer had obligations to rehabilitate and provide suitable duties to pursuant to s 220 and ss 226 to 228 of the Act.
  1. [49]
    Thirdly, the Appellant was in error in its apparent reliance upon the fact that the Worker had not obtained other employment during seasonal shutdowns in the previous 4 to 5 years.  The Act is not drafted in such a way that an injured worker's entitlement to ongoing compensation is dependent upon the worker proving that they have sustained some form of economic loss by the loss of opportunity to undertake some other form of employment.
  1. [50]
    Fourthly, and most importantly, the Appellant has denied any work to the words "at work" as contained in s 147.  In effect, the approach of the Appellant is to treat s 147 as providing that a worker must not receive an amount that is more than the worker would have received from the worker's employment had the injury not been sustained.  In the present case, the interpretation being propounded by the Appellant leaves no work for the words "if the worker were at work" to do (see s 147(1)).
  1. [51]
    The Regulator submitted that support for its approach to the interpretation of s 147 was to be found in the decision of Hall P in the QAS matter referred to above.  In doing so, it submitted that there was no material difference between the circumstances in that case, where the employee had been suspended from duty without pay, and the present case, where the employee had been seasonally terminated.

Termination of employment does not impact rehabilitation obligations

  1. [52]
    The Regulator submitted that the seasonal termination of the Worker's employment did not impact the obligations of the Appellant as a self-insurer pursuant to s 220 of the Act.  These obligations continue to apply even after there has been a termination of employment. If the Insurer is unable to have the employer provide suitable duties to the injured Worker or is unable to secure a host employer for the injured Worker to provide suitable duties, then the Insurer is obligated to continue to pay workers' compensation benefits to the Worker.
  1. [53]
    If this obligation to provide rehabilitation (and indeed the obligation to make compensation payments to an injured worker) could be subverted or avoided simply by terminating a worker, it would undermine the entire purpose of the workers' compensation scheme.

The Appellant's obligations as a self-insurer

  1. [54]
    In his oral submissions, Mr O'Neill, who represented the Regulator, stressed it was necessary for the Commission to keep in mind that there is a distinction between the employer, as such, and the employer as a self-insurer. In a situation where there was not self-insurance, and the employee was terminated - even on a seasonal termination of employment basis - the Insurer would still have the obligation to pay workers' compensation benefits.

The Regulator's conclusion

  1. [55]
    The Regulator said that if a beneficial interpretation to the Act was adopted by the Commission, then, to the extent that there is any ambiguity in s 147, it should be construed so as to give the fullest relief which the fair meaning of its language will allow (in the words of Martin P at paragraph [27] in Sarkaria[12]).  The approach to the interpretation of s 147 propounded by the Regulator does this, whereas the approach propounded by the Appellant does not. In fact, the Appellant's approach subverts the beneficial intent of the legislation.
  1. [56]
    Finally, the Regulator submitted that its approach to the interpretation of s 147 was also consistent with the other provisions of the Act, like s 220 which confirms that the Insurer has an ongoing obligation to provide rehabilitation to an injured worker and to ensure an injured worker makes an early return to suitable duties.

Consideration and conclusion

The relevance of s 107B(3)

  1. [57]
    The Appellant made passing reference in its submissions to the provision in s 107B(3) of the Act in support of its argument that the provisions of s 147 should be interpreted in the manner it proposed, namely: that the Worker's entitlements should reflect those which she would have received during the relevant "season" - i.e. the seasonal shutdown - being $0.
  1. [58]
    However, the flaw in this argument is that, on the submissions made, the Agreement does not include any reference to "seasons" per se, or different provisions that might apply in different seasons.  Although the Agreement does include reference to a daily hire allowance and a seasonal allowance (both apparently paid while employees are at work), the nature of those provisions are not sufficiently apparent to attract the operation of s 107B(3).  Further, a shutdown could hardly be described as a "season", given that there is no work performed during it.
  1. [59]
    In the present situation, there is no apparent distinction in the Agreement between amounts payable to workers in one "season" compared to amounts which might be payable in another "season" such that the provisions of s 107B(3) would be enlivened.  By way of contrast: an industrial instrument (such as an Agreement) covering the workforce of a sugar mill might include a provision to the effect that for six months of the year (the non-harvesting period) the hours of work will be 4 x 8.5 hour days = 34 hours per week, while in the other six months (the harvesting season) they will be 42 hours, worked on 5 days of  8.4 hours each.  The provisions of that industrial instrument would activate the operation of s 107B(3) and require an injured worker's compensation payments to be calculated to reflect the relevant season (or part thereof).

The interpretation and operation of s 147

  1. [60]
    On initial consideration, the submissions of the Appellant seem both sensible and logical. However, upon deeper consideration, it seems to me that the Appellant has simply interpreted the provisions of s 147 to accommodate the factual situation, rather than considering what the words in the section actually mean, in the context of the Act read as a whole.
  1. [61]
    In QAS[13] Hall P said:

"… The argument which has prevailed hitherto is that the cap (at s 147) is to be ascertained by looking at what the worker would have received had the worker been at work and uninjured in the employment in which the worker was engaged at the time at which the injury was sustained.  As a matter of first impression, I must say that the argument which has hitherto prevailed seems to be amply supported by the natural and grammatical meaning of the words which have been used.

Some criticism has been made of the Industrial Magistrate's treatment of the Workers' Compensation and Rehabilitation Act 2003 as beneficial legislation.  To the extent that the Act, like the earlier WorkCover Queensland Act 1996, imposes statutory hurdles on the route to common law damages, the statute is plainly not beneficial. Indeed, in Kelly v WorkCover, Atkinson J decided as much.  That said, it seems to me that in providing benefits (not otherwise available) to workers who suffer work-related injuries, each of the two statutes are still properly characterised as beneficial.  But I do not consider that characterisation of the statute as beneficial is of any present assistance. Section 147 is in the nature of a limitation on beneficence. It seems to me that it should be treated as part of a legislative attempt to achieve a careful and practical balance between competing interests and not moulded by a court to better achieve a remedial goal…  That same difficulty affects the Appellant's submission based upon the main objects of the Act at Part 2.  While one must acknowledge the objects are an aid to the interpretation of the Act (because s 4(2) expressly so provides) it seems to me that one should not utilise the expressed intention to maintain a balance between providing the appropriate benefits to injured workers and ensuring reasonable premium levels for employers (s 5 (4)) as justification for participation in the balancing exercise.  One has to notice that the Act expressly suspends the payment of compensation were a worker serving a term of imprisonment: see ss 137 and 138.  The absence of a comparable express provision about suspension may have a variety of explanations.  The task, it must be remembered, was to construe legislation, not to remedy (presumed) legislative defects.  I accept, of course, that in the interpretation of a provision of an Act, the interpretation which will best achieve the purpose of the Act is to be preferred to any other interpretation: see s 14A of the Acts Interpretation Act 1954…  I also accept that for the purposes at s 14B of the Acts Interpretation Act 1954, one may have regard to extrinsic materials including the Explanatory Note to a Bill and the Minister's Second Reading Speech.  But, as is often the case, the Explanatory Note to which I have been taken is simply unhelpful.  And there would, in any event, be the difficulty of the intractable language of s 147."

(citations omitted; emphasis in each instance is mine)

  1. [62]
    The Appellant's submissions, especially its reliance on the Explanatory Notes to the 1996 Bill, do not overcome the "intractable language", as Hall P described it, of s 147.  Relevantly, as recorded above, the provision reads:
  1. (1)
    A worker must not receive an amount under this part that is more than the worker would have received from the worker's employment if the worker were at work and the injury had not been sustained. (my emphasis)
  1. [63]
    The provision has no application in the circumstances described in the Background facts in paragraph [2] above.  This is because the Worker was not "at work", and could not have been at work, because the meat processing plant was closed for seasonal shutdown. As such, the Appellant's argument is non sequitur.  The Appellant's argument, in effect, replaces the words "at work" with the words "at the worker's normal place of employment" - or words to that effect. The highlighted words in s 147 have meaning, and application, in circumstances where the worker could be envisioned to be "at work" (and working) and the injury had not been sustained but cannot apply in the circumstances which exist here.
  1. [64]
    In similar vein, the Appellant's apparent argument that s 147 operates in such a way that the Worker was not entitled to any workers' compensation payments beyond 16 December 2016, because her services were terminated on that date, must be rejected. This is for several reasons.
  1. [65]
    Firstly, a worker's entitlement to workers' compensation payments does not cease upon the termination of their employment.  In this respect s 144A - When weekly payments of compensation stop (one of only two sections in chapter 3, Part 8A - When entitlement to compensation stops) relevantly provides:
  1. (1)
    The entitlement of a worker to weekly payments of compensation under part 9 stops when the first of the following happens -
  1. (a)
    the incapacity because of the work related injury stops;
  2. (b)
    the worker has received weekly payments for the incapacity for 5 years;
  3. (c)
    compensation under this part reaches the maximum amount under part 6.

  1. (4)
    This section does not limit another provision of this Act that stops weekly payments*.

(my emphasis)

(*My Note: see, for example, s 173 - Redemption - worker moves abroad)

  1. [66]
    Relevantly, s 147 is not a provision concerning the "stopping" of payments.  It concerns the quantum of a worker's entitlement.
  1. [67]
    The Worker's incapacity, because of the work related injury, did not stop on 16 December 2016. She remained wholly, or partially, incapacitated until (at least) 21 March 2017.  During that period, she was entitled to workers' compensation payments calculated in accordance with the provisions of Chapter 3, most particularly Part 9, Division 4 (total incapacity) and Division 5 (partial incapacity).
  1. [68]
    Secondly, the interpretation of s 147 propounded by the Appellant could lead to manifestly absurd and unreasonable results.
  1. [69]
    Three examples come to mind:
  • a labourer engaged on a casual basis for a period of three days, to help a carpenter and their apprentice erect roof trusses, would cease to be entitled to workers' compensation benefits at the end of the third day if they fell and broke their ankle on the first day of the engagement;
  • a labourer engaged to help a grape grower to pick the grapes in his vineyard, for supply to a winemaker, would also cease to be entitled to workers' compensation benefits from the day the last grape was picked; and
  • a skilled patternmaker, badly burned when a furnace exploded, would lose their entitlement to compensation, as well as other benefits and entitlements available to them under the Act (including access to rehabilitation), if the foundry in which they worked closed.
  1. [70]
    Such outcomes would be contrary to the intent of the Act and defeat several of its main objects, namely: to provide benefits for workers who sustain injury in their employment (see ss 5(1)(a) and 5(2)(a)) and establish processes for injury management, emphasising rehabilitation of workers particularly for return to work (see s 5(2)(f)).
  1. [71]
    Further, if the Appellant's interpretation is accepted, its obligation - as a self-insurer - to take the steps it considers practicable to secure the rehabilitation and early return to suitable duties of a worker who has an entitlement to compensation (see s 220) would also cease from the date of its seasonal shutdown.  Not only is there no suggestion in the legislation that such outcome is permissible, it would also be contrary to the overall objects of the Act - especially s 5(2)(f) and s 5(4)(d).

The Worker's entitlement to compensation payments during the period of total incapacity

  1. [72]
    In light of my finding that s 147 is to be interpreted in the manner as submitted by the Regulator, it follows - as acknowledged by the Appellant at paragraph [29] above - that the Worker is entitled to receive workers' compensation payments during the period of her total incapacity, i.e. 23 January 2017 to 5 March 2017, inclusive.
  1. [73]
    The calculation of such entitlements would appear to be prescribed at s 150, above, but the amount concerned will depend upon the length of time that the Worker was totally incapacitated - as opposed to partially incapacitated - in the period 27 June 2016 to 16 December 2016, inclusive.

The Worker's entitlement to compensation payments during the periods of partial incapacity

  1. [74]
    I agree with the Appellant's statements at paragraphs [29] and [36] above, that the workers' compensation payments to the Worker during the periods of her partial incapacity are to be calculated solely by reference to the provisions of ss 162 and 163 of the Act and that the Appellant's alleged failure to comply with the provisions of s 220 has no relevance to the calculation of her entitlements.
  1. [75]
    In my view, there is no mandate in the Act for the Regulator's review unit to have decided that:

In the circumstances (where) the Worker had capacity to work six hours per day, with restrictions on the duties able to be performed as noted on the medical certification issued (then), in the absence of any alternative rehabilitation or return to work options/s, the responsibility for the payment of weekly compensation benefits is the full responsibility of JBS as the self-insurer.  Therefore, pursuant with (sic) sections 162 and 163 of the Act in calculating the Worker's entitlement to compensation benefits, JBS is required to compensate the Worker at the maximum compensation rate* for periods of partial incapacity in circumstances where no alternative rehabilitation, in the form of suitable duties, were made available to the Worker. (my emphasis)

(*Note:  This equates to the amount that would have been payable to the Worker had total incapacity, as opposed to partial incapacity, resulted from the injury.)

  1. [76]
    To all intents and purposes, the review unit seems to have reached such decision as a way of imposing a "penalty" on the Appellant for its (alleged) failure to meet its obligations under (at least) s 220 of the Act.  This is because there is no other basis upon which such decision could have been reached. The provisions of Chapter 4 - Injury management, which includes s 220, do not contain any such power.  Nor do the provisions of Chapter 3 - Compensation, which deal with the method of calculating injured workers' entitlements.
  1. [77]
    It seems to me that a failure on the part of the Appellant, as a self-insurer, to meet its obligations under s 220 of the Act is something to be dealt with in another place, as a breach of the Act.  In any event, there is simply nothing in s 220, or any other part of the Act, to underpin the review unit's decision to direct that the maximum amount of compensation be paid to the Worker in respect of her periods of partial incapacity. The decision cannot stand.

Conclusion

  1. [78]
    For the reasons outlined above, I have reached the following conclusions:
  • the interpretation of s 147 of the Act propounded by the Appellant is rejected;
  • the provisions of  ss 107B(3) and 147 of the Act have no application to the situation of the Worker as it has been described in the Background facts in paragraph [2] above;
  • the Worker is entitled to workers' compensation payments, calculated in accordance with the provisions of s 150 of the Act, for the period 23 January 2017 to 5 March 2017 during which time she was totally incapacitated for work; and
  • the Worker is entitled to workers' compensation payments, calculated in accordance with the provisions of ss 162 and 163 of the Act, for the periods 16 December 2016 to 22 January 2017 and 6 March 2017 to 21 March 2017, respectively, during which time she was partially incapacitated for work.
  1. [79]
    In light of the above, I make the following Orders:
  1. (1)
    The appeal is upheld in part.
  1. (2)
    The decision of the Regulator dated 15 November 2017 is set aside.
  1. (3)
    The Worker is entitled to workers' compensation payments for the period of her total incapacity for work, calculated in accordance with the provisions of s 150 of the Act.
  1. (4)
    The Worker is entitled to workers' compensation payments for the periods of her partial incapacity for work, calculated in accordance with the provisions of ss 162 and 163 of the Act.
  1. (5)
    The matter is returned to the Regulator, with the direction that the workers' compensation entitlements of the Worker are to be calculated in accordance with Orders (3) and (4) above.
  1. (6)
    The matter of costs is reserved, to be dealt with on application if either party is minded to apply.
  1. [80]
    I determine and Order accordingly.

Footnotes

[1] Explanatory Notes, WorkCover Bill 1996 (Qld), 68, Division 3.

[2] Maxwell on The Interpretation of Statutes, 12th Ed, pp 28, 29.

[3] Kelly v WorkCover Queensland [2002] 1 Qd R 496, 498.

[4] State of Queensland (Queensland Ambulance Service) v Q-Comp [2006] QIC 25.

[5] Anderton v Q-Comp 183 QGIG 671.

[6] The Metropolitan Gas Co v The Federated Gas Employees' Industrial Union [1924] 35 CLR 449 per Isaacs and Rich JJ, 451-8.

[7] Attorney-General v Prince Augustus of Hanover [1957] AC 436, 461,467.

[8] Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355.

[9] Grey v Pearson (1857) 6 HLC 61, 106.

[10] Q-COMP v Baulch [2004] QIC 11; 175 QGIG 978 - which applied to the Act's predecessor, WorkCover Queensland Act 1996;  Cloncurry Shire Council v Workers' Compensation Regulatory Authority & Anor [2006] QSC 326, 20, 24;  Brett Holt Plumbing Pty Ltd v Q-COMP (2005) 178 QGIG 255;  Toll North Pty Ltd v Simon Blackwood (Workers' Compensation Regulator) & Lamb [2014] QIRC 065.

[11] Mandep Sarkaria v Workers' Compensation Regulator [2019] ICQ 001, [27].

[12] Mandep Sarkaria v Workers' Compensation Regulator [2019] ICQ 001, [27].

[13] State of Queensland (Queensland Ambulance Service) v Q-Comp [2006] QIC 25.

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Editorial Notes

  • Published Case Name:

    JBS Australia Pty Limited v The Workers' Compensation Regulator

  • Shortened Case Name:

    JBS Australia Pty Limited v The Workers' Compensation Regulator

  • MNC:

    [2019] QIRC 120

  • Court:

    QIRC

  • Judge(s):

    Bloomfield DP

  • Date:

    21 Aug 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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